United States District Court, S.D. Illinois
AARON MAURICE PETTES, No. 11393-031, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
R. Herndon, United States District Judge
se Petitioner Aaron Maurice Pettes, currently
incarcerated in the Federal Correctional Institution at
Greenville, Illinois (FCI-Greenville), brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge
the constitutionality of his confinement. Relying on the
recent case of Mathis v. United States, __ U.S. __,
136 S.Ct. 2243 (2016) and other recent decisions, he argues
that his prior Nebraska burglary convictions should not have
been used to impose an enhanced sentence under the career
offender sentencing guidelines.
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 provides
that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases, such as this action under 28 U.S.C. § 2241.
Without commenting on the merits of Petitioner's claims,
the Court concludes that the Petition survives preliminary
review under Rule 4 and Rule 1(b).
September 25, 2006, Petitioner pled guilty to 18 U.S.C.
§ 2113(a) for Bank Robbery. (Doc. 1, p. 3). On January
22, 2007, Petitioner was sentenced to 151 months'
imprisonment. Id. Petitioner appealed and later
filed but ultimately dismissed a 28 U.S.C. § 2255
criminal case, Petitioner was sentenced as a career offender
pursuant to the United States Sentencing Guidelines (USSG) at
§ 4B1.1. (Doc. 1, pp. 3-4). The sentencing enhancement
was based on the fact that Petitioner had at least two prior
felony convictions of either a crime of violence or a
controlled substance offense. Petitioner argues that his
prior burglary convictions, under Nebraska's burglary
statute, Nev. Rev. Stat. §§ 28-905(1), 28-507, were
improperly considered predicate offenses under § 4B1.1.
(Doc. 1, p. 4).
prisoner may employ § 2241, as opposed to § 2255,
to challenge his federal conviction or sentence under very
limited circumstances. Specifically, 28 U.S.C. § 2255(e)
contains a “savings clause” which authorizes a
federal prisoner to file a § 2241 petition where the
remedy under § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
Petitioner argues that, in light of Mathis and
related authority, his prior Nebraska convictions do not
qualify as predicate offenses for a career-criminal
enhancement. (Doc. 1, pp. 4-9). Petitioner apparently seeks
the Court to remove his career offender status so that he may
be resentenced without the career offender enhancement.
undersigned has explained in a number of prior decisions,
this type of challenge facially satisfies the conditions to
be considered in a § 2241 proceeding under the savings
clause of § 2255(e). See e.g., Hoskins v.
Werlich, No. 17-cv-652-DRH (S.D. Ill. July 28, 2017);
Warren v. Werlich, No. 17-cv-84-DRH (S.D. Ill. Mar.
27, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill.
June 14, 2017); Wadlington v. Werlich, No.
17-cv-4499-DRH (S.D. Ill. July 17, 2017). However, as the
Court has previously noted, Mathis involved the
Armed Career Criminal Act and not the federal sentencing
guidelines. United States v. Hinkle, 832 F.3d 569,
574 (5th Cir. 2016). Thus, the Mathis decision may
or may not be applicable to Petitioner's sentence, where
the sentencing enhancement was determined based on the
advisory sentencing guidelines and not the ACCA
given the limited record before the Court and the
still-developing application of the Mathis decision,
it is not plainly apparent that Petitioner is not entitled to
habeas relief. See Rule 4 of the Rules Governing
§ 2254 Cases in United States District Courts.
Therefore, the Court finds it appropriate to order a response
to the Petition.
IS HEREBY ORDERED that Respondent Werlich shall
answer or otherwise plead within thirty days of the date this
order is entered (on or before Ocotober 5,
2017). This preliminary order to respond does
not, of course, preclude the Government from raising any
objection or defense it may wish to present. Service upon the
United States Attorney for the Southern District of Illinois,
750 Missouri Avenue, East St. Louis, Illinois, shall
constitute sufficient service.
IS FURTHER ORDERED that pursuant to Local Rule
72.1(a)(2), this cause is referred to United States
Magistrate Judge Clifford J. ...